8 comments:

Oh, now are those "lawyers" from HRO who are working for Sony-BMG, EMI, Universal and Warner already at the 800+ filenames in the list.

800+ times 150000 (since they allege willfulness!) = wow, the "kids interogation expert"-Raynolds probably got wet pants given so much money. (of course if the 800 filenames is suddenly not an argument given that they sued only for less then 10 what place has this hyperbole in this memo?)

Of course the ridiculousness of Timothy's argument that these songs were distributed to "millions" by Tenenbaum is so obvious, no need to comment on that with logic.

Everyone with a brain and elementary school tought counting abilities should see that it is Bovine Feces what Holme, Roberts and Owen lawyers are arguing in that Memo!

The RIAA lawyer states, "Under Defendant’s theory, a shoplifter or jewel thief would seem to warrant some type of relaxed treatment so long as they simply kept the stolen goods instead of selling them to others. From the retailers’ perspective, the impact of the theft is the same, they aredenied the value of the goods." In fact, a person with a song in their shared file may have paid for it or ripped it from a CD and not have stole it at all. Then the RIAA lawyer states, "he then distributes those copies for free to millions of other users on the Internet without authorization over a period of several years. The harm to Plaintiffs from such unauthorized copying and distribution of their copyrighted works is incalculable." Proving that statement is going to be incalculable as well as impossible. Back to the "making available" mess.

The judge can choose to "allow" or "reject" the FSF's brief? My question is, even if he "rejects" it (or whatever negative action he could take), will he still read it enough to learn about the relevant authorities, which clearly impact arguments made by Plaintiffs and the government? I don't understand the legal procedure at work here.-Kate

I can't imagine a thorough Judge like Judge Nancy Gertner would not read the applicable authorities, whether or not the amicus curiae brief is formally accepted.

However, I also can't imagine what possible grounds for objection the RIAA could express for rejection of the brief, and I can't imagine the Judge accepting any such nonsense from them. So I do expect the motion for leave to file an amicus curiae brief to be granted and for the brief to be read and absorbed.

"Only in Defendant’s imaginary world are the record company Plaintiffs the wrongdoers"... Oh Really! Give me a break.

Who hired a professional investigator to invaded millions of private computers, without authorization, to copy, fondle and captured files and screen shots, as well as record computer user names and data from protected computers? Who then attempts to extort money for the dirty work? Who was it that initiated the private investigations months before filing any charges, and without any regulation whatsoever? Who was it that claimed they were "Doing what any other user of a P2P network would do” by spying on private individuals and getting paid a bounty for it? Who devised this scheme while simultaneously selecting a targeted cross-section of students from various institutions to terrorize (an unreported majority of which are female)? What trade group advertised the terror scheme by press releases, radio and television coverage and orchestrate an abuse the Federal Courts as if they were a private hammer, used to attempt to drive the Genie back into the Bottle? Who is it that advertised their attempt to create an “Urban Legion” through social indoctrination? Where in the Copyright law are the Plaintiffs (or any private industry) given the authority to conduct private investigations for hire on such a mass scale as has been conducted here? If Congress authorized such conduct, then it has exceeded it authority, just as it has with its ridiculous statutory damages and the law that supports them. The current law is nothing more than a distortion of the original concept of the copyright, perpetuated by big content lobbyist wining and dinning our elected officials. The Plaintiffs minimize their violation of basic constitutional civil rights to privacy and due process in an attempt to promote their scheme, and pretend that they are the victims. Then they abuse the Federal Courts via Ex Parte communications with the courts using a centralized litigation team, at the expense of the taxpayers. The recording industry bought the law, have now infiltrated the DOJ, lobbied and spent huge money on elected officials, and may have even found a way to have their private investigator SafeNet secure a contract with the DOJ and other federal agencies. Who was it that has brought the nearly 40,000 lawsuits? The companies who allow the music into the public domain, and in some cases have purposely placed it there, is crying foul! How wrong it that? They need to “Get off the Cross” someone needs the wood. The Courts on the other hand, have got to restore the balance of power, stop the greedy madness, and fulfill their requirement of Justice and Equality for all. We live in interesting times.

1) They can not definitively identify the computer they are purporting to catch.

2) They assume that the records of the ISP is accurate and that the clocks are synched between their "investigation" service and the ISP ( I have seen no attempt at garnering that information)

3) They can not say how long the purported materials were available, nor how often the defendant is online, nor if the defendant was even online at the time of the alleged "distribution"

4) A little simple math would seem to refute the "millions" of distributions. If you take a small mp3 file (say 3MB, which is really a fairly low quality) and put it on a share (intentionally or accidentally) what would it take to transmit to a million people. Well, most cable systems limit upload speed to 512 or 768 Mb/s. Let's take the larger figure, that works out to 98304 bytes per second (ideal, not accounting for overhead bytes in the TCP protocol or other items). 3MB is 3145728 bytes and dividing the speed into the size, we get 32 seconds (again, this is unrealistic as there is a lot of overhead data that also goes over the line). So, for a million distributions, it would take 32 million seconds. Which is 8889 hours. Assuming the connection is up for 24 hours a day, 7 days a week, and continuously transmits with no stopping, it would take 370 days. So, if you have 20 songs, all of low quality, sent to a million pc's, that's 20 some years, and surely someone would notice that amount of continuous traffic which would make an organization like MS unnecessary.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove